United States v. Payton, Antonio J.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4245
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO J. PAYTON, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:99CR40034-001-JPG—J. Phil Gilbert, Judge.
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ARGUED FEBRUARY 13, 2003—DECIDED MAY 12, 2003
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Before COFFEY, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found Antonio Payton, Jr.
guilty of conspiring to distribute more than five grams of
crack cocaine in Jackson County, Illinois, between 1996
and 1999. In this appeal Payton challenges the sufficiency
of the description of the conspiracy in the indictment, the
evidence of his guilt, and the district court’s findings
concerning the amount of drugs for which he was responsi-
ble.
Payton first asserts, although acknowledging a long line
of contrary precedent, that the indictment in his case
was insufficient because it failed to identify his cocon-
spirators. Payton contends that our precedents are confus-
2 No. 01-4245
ing, but we think both the rule and the reason for it are
clear: the government need not prove with whom a defen-
dant conspired, only that he joined the agreement. See, e.g.,
United States v. Testa, 33 F.3d 747, 750 (7th Cir. 1994);
United States v. Maholias, 985 F.2d 869, 874 (7th Cir.
1993). Because it is the grand jury’s statement of the
existence of the conspiracy agreement rather than the
identity of the parties to the agreement that puts the
defendant on notice of the charge he must be prepared
to meet, an indictment need not name coconspirators.
United States v. Townsend, 924 F.2d 1385, 1389-90 (7th
Cir. 1991). See also United States v. Penny, 60 F.3d 1257,
1262 (7th Cir. 1995); United States v. Lopez, 6 F.3d 1281,
1288 (7th Cir. 1993); United States v. Lechuga, 994 F.2d
346, 350 (7th Cir. 1993); United States v. Kramer, 711 F.2d
789, 796 (7th Cir. 1983). We decline Payton’s invitation to
reexamine these cases.
Payton’s second challenge—to the sufficiency of the
evidence against him—can be rejected based on the trial
testimony of a single witness: Payton’s father Milton.
Milton testified that he worked as a “runner” for his son’s
crack operation in Carbondale, Illinois, from November
1996 to April 1999, carrying crack from Payton to his
customers. This testimony alone is sufficient evidence of
a distribution conspiracy. See, e.g., United States v. Adkins,
274 F.3d 444, 450-51 (7th Cir. 2001) (sufficient evidence
of conspiracy where seller’s agent worked as his “go-be-
tween,” passing drugs to street-level dealers), cert. denied,
123 S. Ct. 150 (Oct. 7, 2002); United States v. Jackson, 213
F.3d 1269, 1298-99 (10th Cir. 2000) (sufficient evidence
of conspiracy between seller and assistant who worked
as runner, middleman, and guard); United States v. Her-
rera, 54 F.3d 348 (7th Cir. 1995) (sufficient evidence of
conspiracy between broker and buyers where broker ar-
ranged single drug purchase); United States v. Lampkins,
47 F.3d 175, 179 (7th Cir. 1995) (sufficient evidence of
No. 01-4245 3
conspiracy where runner discussed drug deals and ex-
changed drugs and cash); Lechuga, 994 F.2d at 350 (con-
spiracy between seller and one who acts as “go-between,
facilitator, sales agent, and general helper”). There was
other evidence as well, including testimony from people
who bought drugs directly from Payton, but this does
not mean (as Payton suggests) that the evidence against
him was limited to “unconnected buyer-seller transac-
tions.” Such transactions involve only the two-person
criminal agreement necessary for the separate crime of
distribution and thus are not punishable as conspiracies.
See United States v. Shi, 317 F.3d 715, 718 (7th Cir. 2003);
United States v. Torres-Ramirez, 213 F.3d 978, 981 (7th Cir.
2000); United States v. Clay, 37 F.3d 338, 341 (7th Cir.
1994); Townsend, 924 F.2d at 1394. But when the buyer
or the seller is assisted by a third person, that collabora-
tion is punishable as a conspiracy. The “buyer-seller”
argument is irrelevant in such cases because the conspira-
tors are on the same side of the sale. See United States v.
Garcia, 89 F.3d 362, 365 (7th Cir. 1996); United States v.
Larkins, 83 F.3d 162, 167 (7th Cir. 1996); Herrera, 54
F.3d at 353-54; United States v. Baskin-Bey, 45 F.3d 200,
205 (7th Cir. 1995). The evidence showing that Payton and
his father worked together puts his case in this category.
Compare Adkins, 274 F.3d at 451 (conspiracy between sell-
er and go-between who passed drugs to street-level dealers);
Garcia, 89 F.3d at 365 (conspiracy between buyer and
agent); Larkins, 83 F.3d 162 (conspiracy between buyer
and assistant); Herrera, 54 F.3d at 353-54 (conspiracy
between defendants on “buying side” of sale); Lampkins,
47 F.3d at 179 (conspiracy between sellers and runner); and
Baskin-Bey, 45 F.3d at 205 (conspiracy between two
buyers), with United States v. Thomas, 284 F.3d 746 (7th
Cir. 2002) (no conspiracy between broker and buyers
where broker “presumably earned his commission” from
seller); United States v. Rivera, 273 F.3d 751 (7th Cir.
2001) (no conspiracy between middlemen and seller where
4 No. 01-4245
middlemen were paid by buyer); and United States v.
Contreras, 249 F.3d 595 (7th Cir.) (no conspiracy be-
tween middleman and seller where middleman assisted
buyer), cert. denied, 534 U.S. 914 (Oct. 1, 2001).
Payton’s final argument—that the district court attrib-
uted more than three kilograms of crack to him as rele-
vant conduct without explaining how the drugs were
connected to the conspiracy—is difficult to understand.
In fact, the court found these drugs were part of the
conspiracy for which Payton was convicted, and the basis
for the finding is clear: the court found, based on a state-
ment by another of Payton’s drug runners, Wendell Wooley,
that Payton possessed brick-size quantities of crack on
at least five occasions between 1996 and 1998. A former
FBI agent who testified at Payton’s sentencing hearing
explained that each brick would weigh conservatively
one kilogram. This finding is sufficiently specific, and
Payton offers no argument that it is clearly erroneous.
The district court’s judgment is AFFIRMED. The govern-
ment’s motion to strike Payton’s brief is DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-12-03